Reid v Rose City Funeral Home Ltd

[2013] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2012-454-547 [2013] NZHC 1002

UNDER  the Judicature Act 1908, the Judicature Amendment Act 1972, the Declaratory Judgments Act 1908, the District Courts Rules 1992 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF     an application for review

AND

IN THE MATTER OF     an application for a declaration invalidating a distress warrant issued by the Palmerston North District Court, a declaration determining liability under probate and for orders for the return of property

BETWEEN  JAMES ROBERT REID Applicant

ANDROSE CITY FUNERAL HOME LTD First Respondent

ANDPALMERSTON NORTH DISTRICT COURT

Second Respondent

Hearing:         On the papers

Counsel:         R W Groot for Second Respondent

Judgment:      7 May 2013

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.15 pm on the 7th day of May 2013.

COSTS JUDGMENT OF MACKENZIE J

REID V ROSE CITY FUNERAL HOME LTD HC PMN CIV-2012-454-547 [7 May 2013]

[1]     In an oral judgment delivered on 18 December 2012, I dismissed this proceeding.[1]    The second respondent had indicated in its submissions in support of its strike-out application that, if successful, indemnity or increased costs would be sought.   Counsel for the second respondent has, on 11 April 2013, filed a memorandum seeking indemnity costs amounting to $11,774.34, including disbursements and GST.  The makeup of that sum is set out in the schedule attached

to counsel’s memorandum.  That memorandum also notes that scale costs, on a 2B

basis, would amount to $7,964.85, inclusive of disbursements and GST.

[1] Reid v Rose City Funeral Home Ltd [2012] NZHC 3588.

[2]      Indemnity costs may be awarded under r 14.6(4)(a) of the High Court Rules where a party has acted vexatiously, frivolously,  improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding.

[3]      The proceedings were purported to be brought by Mr Reid in his capacity as a trustee of the Frederick Frank Trust.  The trustees of the Trust are Mr Reid and Mr Hale, both of whom appeared in person at the hearing.   The present proceedings were not brought in the name of the Trust, but in the name of Mr Reid.   The proceeding sought to challenge a judgment which had been obtained by the first respondent against Mr Hale personally.   The second respondent was the District Court at Palmerston North, in which that judgment had been obtained and in which enforcement procedures had been taken.

[4]      In my judgment I held that it was absolutely clear beyond argument that the Frederick Frank Trust, and Mr Reid in his capacity as a trustee of that Trust, had no standing  to  bring  the  proceedings.    The  judgment  was  against  Mr  Hale  in  his personal capacity, not in his capacity as a trustee of the Trust.

[5]      I am satisfied that Mr Reid acted vexatiously, frivolously and improperly in commencing the proceeding.   First, as I have held, the judgment which the proceedings sought to challenge was against Mr Hale personally and not against the

Trust.  The assertion that the Trust was involved was, I am satisfied, made so as to

give Mr Reid standing in these proceedings which he would otherwise not have, and which I have held that he did not have.

[6]      In considering whether Mr Reid’s actions were vexatious and frivolous, it is permissible to take into account the fact that, after these proceedings were commenced, an order was made under s 88B of the Judicature Act 1908 declaring Mr Reid a vexatious litigant. [2]

[2] Attorney-General v Reid [2012] NZHC 2119, [2012] 3 NZLR 630.

[7]      One  category  of  proceedings  considered  by  this  Court  on  the  s 88B application is particularly relevant to the present application for costs.   The circumstances were described in these terms:[3]

In 2010, Mr Reid became involved in his fourth case category, two cases in which he had no direct interest, each of which had an extensive history and had already been effectively determined. In each he obtained standing by becoming a trustee in an existing trust. He then took charge, setting out to challenge the decisions already given. As in the other categories of case, each of these two cases soon had offshoots, not all of which are completely resolved. Of concern has to be that in one Mr Reid was allowed to take his expenses out of trust money.

[3] At [90].

[8]      One of these two cases involved the Frederick Frank Trust.  It is described at [272] to [274].   A strike-out application is said to be “still to be decided”.[4]    In a judgment delivered on 28 May 2012, I struck out the claim against the Masterton District and High Courts.   The claims against those parties bear considerable similarity to the claim against the second respondent in this proceeding.  It is clear that the sole reason Mr Reid was appointed as a trustee of the Trust was to enable

him to pursue that proceeding.

[4] At [274].

[9]      Mr Reid’s actions in these two cases show a pattern of seeking to intervene in proceedings in which he has no legitimate interest and in which his involvement arises only because of his own vexatiously litigious tendency.  Mr Reid’s actions in involving himself as a litigant in proceedings in which he has no personal interest, both  in  that  earlier  case  and  in  this  case,  are  vexatious.    In  this  case,  this  is

compounded by his attempt to involve the Frederick Frank Trust in a case in which

the Trust had no direct interest.  These factors support the conclusion that Mr Reid has acted vexatiously in these proceedings, and that they were improperly brought.

[10]     Counsel for the second respondent submits that the costs order should be made against Mr Reid personally.  I consider that that is appropriate.  Mr Reid is the only applicant in these proceedings.  The Trust had no interest or involvement in the subject matter of the proceedings and it would be unjust for the Trust to be required to bear any part of the cost burden which Mr Reid’s commencement and pursuit of this proceeding has brought about.

[11]     There will be an order against Mr Reid personally that he pay the second respondent indemnity costs in the sum of $11,774.34.  He is not entitled to indemnity from the Frederick Frank Trust.

“A D MacKenzie J”

Solicitors:         Crown Law Office, Wellington for Second Respondent

Copies to:         Mr Reid and Mr Hale

Mr Burt, Rose City Funeral Home Ltd